Righting wrongs of history
IQBAL A. ANSARI
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Critical analysis of the politics and the strategies for alleviating disadvantage and deprivation
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POLITICS OF INCLUSION — Castes, Minorities, and Affirmative Action: Zoya Hasan; Oxford University Press, 1st Floor, YMCA Library Building, Jai Singh Road, New Delhi-110001. Rs.675.
With her insights based on socio-political theory of inclusion as well as empirical studies on backwardness of Muslim women, Zoya Hasan has brought under critical scrutiny in her book Politics of Inclusion the remarkable successes and dismal failures of the state’s affirmative action policies and programmes whose uneven, selective caste-centric application has resulted in further widening the disparity between Hindu backward classes and the Muslims, as testified by the Sachar Committee Report (2006), which confirmed that Muslims are now India’s principal underclass.
Quest for equality
The book endeavours “to explore the politics and strategies of dealing with disadvantage and deprivation and to examine whether these need rethinking and reshaping in order to take them forward in India’s quest for equality.” Hasan has successfully made out a case for public discourse on “social justice” to include meaningful debate on change in the electoral system and on Muslim community specific discrimination. It is symptomatic of the majoritarian ethos that none of the electoral reforms committees, either official or NGO, ever considered persistent under-representation of Muslims in legislatures as an issue worthy of attention. She has also convincingly questioned the fairness of the policy orientation of all affirmative measures so as to confine them to compensate for caste-based historical injustices, while ignoring the victims of current “institutionalised inequality and deprivation”, especially Muslims who alone among minorities have been stigmatised for perceived wrongs of history including the Partition, and whose vulnerability also derives from continued adversarial relations with the neighbouring kin state. The only sections of religious minorities who are supposed to be beneficiaries of reservation under Article 16 (4) are some backward occupational biradaries, who being bracketed with more advanced Hindu Other Backward Classes (OBCs) have not been able to benefit from their inclusion. Though the Sachar Committee has ranked the entire Muslim community lower than the OBC Hindus, it has not recommended even a single statutory special measure for the benefit of Muslims. Though the other Commission headed by Justice Ranganath Misra has recommended reservation for religious minorities qua minorities and for extending the benefits of reservations to Christian and Muslim Dalits, its report has not been made public at least for national debate over the constitutional validity of reservation for religious minorities.
Special measures
It needs to be kept in view that the jurisprudence of substantive equality under binding human rights law requires special measures for minorities to enable their members to enjoy effective equality in the common national domain along with preserving their distinct identity. It has been clarified that such special measures will not be violative of the right to equality, which means that adoption of special measures under various Indian constitutional provisions including Articles 16 (1) and 16 (4) will not be anti-secular. Rather non-recourse to special measures to end discriminatory practices is anti-secular. The real test of secularity of any state lies in creating conditions favourable for a social order conducive to enjoyment of substantive equality by all citizens irrespective of social origin or faith affiliation. Unfortunately the hangover of pre-1947 secular-communal paradigm continues to exercise an extremely malignant influence on equal human rights of all non-Hindu groups especially the followers of non-indigenous religions. Happily the principle of substantive equality has been incorporated in the Indian jurisprudence of equality by our higher judiciary. To make the guarantee of non-discrimination under Article 16 (1) effectively available to any disadvantaged group of citizens, irrespective of backwardness, reservation can be made under this provision as laid down by Justice Mathew in the seminal case of State of Kerala v. N.M. Tomas and reiterated by the Supreme Court in the Indira Sawhni case judgment, though with a qualifier of exceptionality. Moreover, in the course of the Mandal judgment, the Supreme Court noted that “Muslims as a whole were treated as a backward community in the princely State of Travancore besides several sections/denominations among the Christians. The word ‘community’ is clearly wider than ‘caste’— and ‘backward communities’ meant not only the caste wherever they may be found — but also other groups, classes and sections among the populace.” The learned Court gave its approval to inclusion of the Muslim community as a whole being treated as backward (as in Karnataka).
Recommendations
The National Commission to Review the Working of the Constitution (NCRWC) also made the clarificatory recommendation in chapter 3.7.1 “that under the existing provisions of Articles 14, 15 and 16 it is open to the state to make reservation (for minorities) if it is of the opinion that such reservation is necessary and justified.” It needs to be kept in view that this recommendation has not been subjected to any necessary condition of backwardness. It is well that the Expert Group on the Equal Opportunity Commission (EOC) has taken due cognisance of this trend of the international and Indian jurisprudence of substantive equality and also of the fact that backward Muslims, whose deprivation and disadvantage, in its view , are substantial need priority attention of the proposed EOC.
Hasan has rightly pointed out the lack of national consensus being a major hurdle in the promise of ensuring fair share to minorities getting implemented. A beginning towards such a consensus needs to be made by convening a round table of the chairs and members of the NCRWC and the National Commission for Religious and Linguistic Minorities (NCRLM) appointed by the NDA and UPA governments under the convenership of Justice V.R. Krishna Iyer, who headed the panel on fundamental rights of the NCRWC, to discuss the converging recommendations of their respective commissions on affirmative action for minorities, to which each recognised political party may send a representative.
However, unless the cobweb of “Indian secularism” interpreted as equal respect for all religions is removed and replaced by respect for and guarantee of enforcement of equal rights of members of all indigenous and non-indigenous religious communities, irrespective of whatever happened in history including 1947, all special measures, howsoever diluted, like the sub-quota for only historically deprived sections of Muslims or schemes like sub-plan for minorities by the Planning Commission will continue to be teasing illusions.
In this regard the Hindu elite’s fear of national disintegration and of mass religious conversion as major sources of opposition to Muslim-specific affirmative action, as pointed out by Hasan, need to be addressed, especially through the mechanism of a statutory empowered Community Relations Commission as suggested in my report for the National Commission for Minorities (NCM) in 1999 to deal with perceived historical wrongs as well as to manage current ethno-religious conflicts.
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